The Ontario court decision in Contacare Inc. v. CIBA Vision Corporation, 2011 ONSC 4276 (CanLII) [“Contacare”] illustrates when an Ontario court will recognize a foreign judgment and will dismiss an identical action on the ground that the proceeding is frivolous, vexatious or an abuse of process. The question remains whether the impeachment defences of fraud, natural justice or public policy are relevant in the court’s analysis for foreign judgment recognition.

The original dispute arose from a licensing agreement concluded in 1985 between CIBA (a Delaware corporation) and Contacare’s predecessor, Trans Canada Contact Lenses Limited (Trans Canada”), a Canadian Corporation with headquarters in Toronto. The Licensing Agreement was expressly governed by New York State law pursuant to the choice of law provision in the Agreement, relating to contact lens technology Know How delivered to CIBA to be developed, marketed and exploited, with royalties payable to Contacare. In 1999, Contacare alleged that CIBA breached the Agreement by failing to develop the Know How and paying it royalties. Contacare sued CIBA in New York for breach of the Licensing Agreement. The New York Action was dismissed on its merits by motion for summary judgment by the Supreme Court of the State of New York in 2007. Contacare’s appeal to the Supreme Court of the State of New York, Appellate Division, was dismissed and the decision below affirmed on March 14, 2008. :eave to appeal to the Court of Appeals of the State of New York was denied on June 25, 2008, thereby rendering the New York judgment final and conclusive.

Contacare thereafter commenced litigation on the same issues in Ontario on January 28, 2010. Contacare further sought an order for the New York State litigation to be continued in the Ontario Superior Court of Justice on the ground that the New York State decision breached basic principles of natural justice and fairness, in lieu of a fair hearing or an opportunity to examine and cross-examine witnesses, and was made without a trial.

CIBA then moved before Justice Carole M. Brown of the Ontario Superior Court of Justice for an order to recognize the New York State judgment and to strike the Plaintiff’s Ontario claim as an abuse of process pursuant to R.21.01(1)(b), as disclosing no reasonable cause of action, being, res judicata; or, alternatively, to dismiss or permanently stay the action as an abuse of process pursuant to R. 21.01(3)(d); or, in the further alternative, to dismiss or permanently stay the action on the ground that the Ontario court lacked jurisdiction simpliciter.

Brown, J. applied the test for enforcement of foreign judgments set forth in the Supreme Court of Canada decision in Beals v. Saldanha, 2003 SCC 72 (CanLII), [2003] 3 S.C.R. 416; namely: 1) whether the foreign court had personal and subject-matter jurisdiction over the dispute (i.e. a “real and substantial connection” and 2) whether the defendant is able to raise any of the impeachment defences of fraud, natural justice or public policy. On the motion, Contacare relied only the defence of lack of natural justice. It is noteworthy that Contacare was the plaintiff, both n the New York State action and the Ontario action.

Brown, J. writes,

[28] While the Plaintiff did not properly introduce evidence of New York State law, rules and proceedings, Curran J., in his decision, set forth the New York State summary judgment test, which, according to his decision, is similar to the Ontario test. Contacare submits that it was denied a trial in New York State due to the summary judgment procedure and therefore was denied natural justice. However, in both New York State and Ontario, summary judgment is granted where a court is satisfied that there is no trial required.

[29] Based on the Supreme Court of Canada’s analysis of the natural justice defence, as set forth at paragraph 21, supra, I find that minimum standards of fairness have been applied to the Ontario Defendants by the New York State courts, the Ontario Defendants were afforded fair process and, the Respondent had the full benefit of New York State’s procedures through its New York State attorneys including two levels of appeal of the judgment. Based on all of the evidence before me, I find that there is nothing which offends our concept of natural justice. I find that the Respondent has not established the defence of a denial of natural justice.

[30] Accordingly, I find that the New York State judgment should be recognized in Ontario, and I so order.

Justice Brown concludes:

[31] As this Court has recognized the New York State judgment, it must be determined what is to be done with the Plaintiff/Responding Party’s action.

[32] The Moving Party submits that the claim should be struck pursuant to R.21.01(1)(b) or dismissed or permanently stayed as an abuse of process pursuant to R.21.01(3)(d); or on the ground that this Court lacks jurisdiction simpliciter.

[33] The New York State and Ontario actions involve the same parties, the same fact situation, the same contractual breaches and claims for damages for breach of the Licencing Agreement. Having reviewed both the New York State and Ontario claims, I find this action to be, in essence, a re-litigation of the New York State action. The New York State action was dismissed on the merits at first instance and on appeal and leave to appeal further was denied, thus exhausting all appeal routes and making the judgment final.

[34] Having considered all the evidence adduced in this action, the case law and the parties’ submissions, and having recognized the New York State judgment, this Court finds that the Plaintiff’s Ontario action CV-10-395904 is a clear attempt to re-litigate the New York State action in Ontario. The case law is clear that such constitutes an abuse of process: Soderstrom v. Hoffman-La Roche Ltd., 2006 CanLII 201 (ON SC), 2006 CanLII 201; 2008 CanLII 15778 (ON SC), 2008 CanLII 15778 (ON.SCJ). I find that this action should be dismissed on the ground that it is frivolous, vexatious and an abuse of this Court’s process, and I so order.

In my view, the Ontario court’s application of the impeachment defences was unnecessary. The issue before the Ontario court on the defendant’s motion was recognition, not the plaintiff’s enforcement of the New York State Judgment judgment. This conceptual distinction is often overlooked. The recognition of a foreign judgment by a domestic court involves a finding that the foreign judgment dismissing the plaintiff’s action is res judicata. Conversely, the enforcement of a foreign judgment involves an Ontario court declaring that the foreign judgment granting the plaintiff’s action is res judicata.

“However, when the court is being asked only to recognize the judgment for the purposes of precluding a party from relitigating a claim or issue, the court will apply the same principles of res judicata and issue estoppel that are applied in local proceedings. For example, in determining whether issue estoppel applies, the court will consider the three preconditions that apply in domestic situations:

1. that the same question has been decided;

2. that the judicial decision which is said to create the estoppel was final; and

3. that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raises or their privies.

Similarly, in determining whether a claim is precluded on the basis that issues were finally determined in a foreign proceeding, the court will treat as res judicata all the points that properly belonged to the subject of the litigation in the foreign proceeding. [citations omitted].”